Thursday, February 26, 2015

MTUC and Trade Unions Can Help End Human Trafficking and Worker Exploitation

MTUC and Trade Unions Can Help End Human Trafficking and Worker Exploitation

23 February 2015

Malaysian Trade Union Congress (MTUC) verily believes that
strong effective trade unions can tackle the problem of trafficking in
human persons, more so when in Malaysia, the main problems is the
exploitation of workers not sexual exploitation or the removal of human
organs.

MTUC welcomes the United Nations Special Rapporteur on Trafficking in
Persons who will be in Malaysia from 23 to 28 February 2015, at the
invitation of the Malaysian government. We note that Ms Joy Ngozi Ezeilo
had recently indicated that she was committed to continue consulting
with, amongst others, workers unions in the struggle to eliminate human
trafficking.

Malaysia’s Anti-Trafficking in Persons Act 2007 also do now clearly
acknowledge that “trafficking in persons” or “traffics in persons”
includes ‘… forced labour or services, slavery or practices similar to
slavery, servitude, any illegal activity…’

No one can fight worker exploitation and protect workers’ rights
better than the workers themselves, and this can be best be done by
trade unions. This Malaysian Act, as it is now, unfortunately, is
lacking as it only focuses on rescue and assistance, but does not help
victims access to justice and get their civil and labour law remedies
including monies still owing to them by employers, compensation and
other damages.

The trade union movement, until 1948 was strong when more than 50% of
workers were members of trade unions, was stifled or ‘busted’ through
the use of laws and other means by the British Colonial government. All
unions were thereafter required to apply for registration, and many
failed to get registered. MTUC arises after this massive crackdown on
the trade union movement in 1948, but we have never managed to regain
the strength of the past in terms of membership. Today less than 5% of
workers in the private sector are unionized.

National independence did not bring about the restoration of trade
union’s strength, and in fact there have been further restrictions
placed on trade unions. Only sector of industry based national, regional
or state Trade Unions were permitted to exist. Then, the government
promoted the formation of in-house unions – whereby the risk is that
such unions are more easily employer influenced or even controlled
unlike national and regional unions.

For a long time, most workers in Malaysia were generally regular
employees until retirement, and almost all workers at a workplace were
employees of the said workplace. With the recent change in policy in
2005, the Malaysian government allowed employers to enter agreements
with third parties, now known as contractors for labour, who supplied
workers that did not become employees of the workplace, now commonly
known as ‘outsourced workers’. This new class of workers could not rely
on the rights and protection accorded by Collective Bargaining
Agreements (CBA), which are agreements between the union representing
employees and the employer. This left these workers vulnerable to
exploitation, and denied of the full protection that could have been
provided by trade unions.

‘Contractor-based labor arrangements of this type-in which the worker
may technically be employed by the recruiting company-create
vulnerabilities for workers whose day-to-day employers generally are
without legal responsibility for exploitative practices.’. This was also
one of the observations made in the US State Department Trafficking in
Persons Report 2014, which downgraded Malaysia to Tier 3 from the
previous standing of Tier 2 Watch List.

MTUC reiterates its position that all workers in a workplace should
be employees of the workplace, with the ability to be able to enjoy the
full benefits of being a union member at that workplace, including all
the rights and benefits provided for in applicable CBAs. Today, in some
workplaces, these class of vulnerable workers can even make up half the
total workforce. MTUC reiterates its call for the abolition of the
contractor for labour system.

Local workers in Malaysia are today indebted, not to the employer but
to financial institutions and others, by reason of home and transport
loans, all of which requires monthly payments. The Malaysian government
can be said to be somewhat responsible for this situation of
indebtedness. Migrant workers are indebted, having expended about
RM5,000 when they came to Malaysia to work. This situation of
indebtedness makes workers vulnerable, and more disempowered to stand up
against exploitation.

Malaysia, through laws and policies, have limited the areas in an
employment relationship where unions can be involved in, and also the
kinds of industrial actions that unions can undertake to promote and
protect worker rights. Strikes and industrial actions have been made
difficult. The fact that there have been almost no strikes for past few
decades is used with pride to woo foreign investors. The limited option
that Unions now have is to picket and campaign – or just lodge
complaints with the relevant authorities but sadly the whole process of
adjudication and determining disputes takes far too long to the
detriment of workers and unions.

A disturbing trend of late has been a growing number of attacks by
employers on union leaders and members, where disciplinary action and
termination is taken for involvement in what really are legitimate union
activities. Union leader issues a media statement, and he is terminated
because the employer says that the issuance of such statements by an
employee a misconduct. For the participation in pickets, union leaders
and members end up facing disciplinary proceedings and termination.
Union members have even been terminated for participation in MTUC
advocacy campaign to get prospective parliamentarians to commit to the
promotion and protection of worker rights. These are all legitimate
union activities and should never be considered employment misconducts.

It is sad that the government has chosen to be silent and do nothing yet about these acts of union busting.

Wrongful dismissal cases can take years, and many workers just cannot
afford to resort to this remedy. Some employers, being aware of this
choose to simply terminate unionist and workers – thus effectively
eliminating worker leaders, weakening unions and instilling further fear
on workers who would have stood up for their rights or fight
exploitation.

The Malaysian government should immediately put a stop to such ‘union
busting’ activities, by legislating what are employment misconducts.
Union activities can never be considered employment misconducts. It must
also be stressed that for the purpose of guaranteeing meaningful and
effective trade union rights, the government must ensure that
disproportionate penalties is never used to dissuade trade union
representatives from seeking to express and defend their members’
interests.

It is most sad that many of these companies that are doing this are
government-linked companies (GLC) or government owned businesses. Such
companies should really be setting the best example for businesses by
protecting worker and trade union rights.

When a Union decides to increase its membership fee, it cannot put
into effect this decision until the Registrar of Trade Union approves,
and many a time the Registrar does not. Unions must be given full right
to amend their Constitution and Rules, and put them into effect
immediately. The Registrar should only be notified, and not vested with
powers to approve or disapprove decisions of the majority of members of
the Union.

Unions must be able to operate freely with the ability to be able to
represent the best interest of workers in all matters concerning the
employment relationship and working condition, including necessary
actions to promote and protect worker and trade union rights. The
impediments now placed on workers to use strike and industrial action as
a means of struggling with employers need to be removed. If and only
if, matters cannot be resolved by both parties, should the government
come in to help bring along a resolution of the dispute and even then
such resolution be it through mediation, arbitration or courts should be
done speedily.

Malaysia, like many governments today are also employers or have
vested interest in businesses, but as government, it must always realise
that its first duty must be to the people, of which there are now about
13 million workers. If one were to include the family and dependents of
workers that would be a significant majority of the people in Malaysia.

Trade unions, if liberated from the legal shackles that bind it
today, can and will be an effective means to promote and protect the
rights of workers, and also to end exploitation of workers and hence
human trafficking in Malaysia.

1 comment:

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